Bench Memos

Law & the Courts

More Ninth Amendment Confusion

Cato’s Roger Pilon has weighed in with his thoughts on the George Will column on judicial restraint that I’ve critiqued. I’ll respond primarily to this strange passage of Pilon’s (which Randy Barnett endorses):

[I]f Whelan were right—that we enjoy only those rights that are expressly stated in the Bill of Rights—then prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document. [Emphasis in original.]

Set aside the fact that I have never said that “we enjoy only those rights that are expressly stated in the Bill of Rights.” (Insofar as Pilon is using “rights” to mean “constitutional rights,” there are, as he notes, other rights set forth in the Constitution.) The “rights against congressional majorities” that existed before the Bill of Rights was ratified arose from the Constitution’s limitations on Congress’s powers. In Madison’s words: “If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended.”

Pilon’s strange passage is of course part of his broader Ninth Amendment mythology, which I have contested before. As I have explained, defenders of the original Constitution argued against a bill of rights on the ground that such a listing might imply that the national government’s powers were far greater than they were. When the Bill of Rights was added, the Ninth Amendment was crafted to guard against this implication. The text of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), which sets forth a mere rule of construction (“shall not be construed”), comports perfectly with this purpose. By contrast, Pilon misreads the Ninth Amendment to say something like: “Notwithstanding the enumeration in the Constitution of certain rights, there are other undefined rights of the people that shall not be infringed.” 

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